Opinion
April, 1899.
C. Walter Artz, for motion.
James M. Hunt (George W. Elkins, of counsel), opposed.
The Fidelity Trust Company of Newark was appointed committee of the person and estate of the incompetent, Mary B. McDermot, by decree of the Orphans' Court, of Essex county, New Jersey, a court having jurisdiction to make such appointments in general. The incompetent's next of kin, Mrs. Jennie E. Mead, consented to the entry of the decree, but now seeks her own appointment as committee, and opposes the Trust Company's motion for ancillary appointments in this state, upon the ground that the incompetency of said Mary B. McDermot had been declared in the course of proceedings in this court, prior to the date of such incompetent's removal to New Jersey, and that, being then incompetent, she could acquire no residence in that state; hence that the foreign court had no jurisdiction.
It is true that Mary B. McDermot was declared an incompetent person on the return of an inquisition in lunacy upon a commission issued by this court, but no appointment of a committee was made in those proceedings, and the effect of the inquisition was not to preclude, absolutely, any exercise of an intention of a change of residence of the incompetent, since the ability to choose a domicile still remains a question of fact, notwithstanding the inquisition (Holyoke v. Haskins, 5 Pick. 20; 16 Am. Dec. 372; Talbot v. Chamberlain, 149 Mass. 57; 10 Am. Eng. Ency. of Law [2d ed.], p. 35, and cases cited in note), and there is no question here of a conflict of jurisdiction, for the jurisdiction of this court over the person and property of incompetent persons (Code of Civil Procedure, §§ 2320, 2321), which is exercised only by means of a committee duly appointed (id., § 2322), has never been asserted in this case.
As to the fact of Mary B. McDermot's ability to choose a domicile in New Jersey, upon which the jurisdiction of the foreign court might be said to depend, that court has determined the fact and the next of kin, Mrs. Mead, is concluded from disputing it. It appears, also, from the papers that the incompetent person had sufficient understanding for the purpose, and I find no sufficient reason for holding that her interests would require an examination into the fact aliunde, in view of the circumstances disclosed.
The case is one for the appointment of the foreign committee as committee of the property of the incompetent within this state (Code of Civil Procedure, § 2326), and the application is, therefore granted. A bond in the sum of $10,000 for the faithful discharge of its trust is required.
Application of next of kin denied, no costs.
Application denied, no costs.